Articles Posted inRights of Publicity – 3344

An Instagram media influencer, Nita Batra, along with a class of other Instagram influencers are suing PopSugar for what could be millions of dollars. Batra runs an Instagram account with over 214,000 followers and a connected lifestyle and fashion blog. As with many other Instagram influencers, Batra generates revenue through a contract with LIKEtoKnow.it, an app and website that identifies and sells clothes based on screenshots. The Influencers’ agreement with LIKEtoKNOW.it allows each influencer to monetize the pictures and information they post to their social media sites. The photographs that they post are linked to LIKEtoKnow.it’s app and website, allowing users to find and buy outfits the influencers wear in their Instagram posts. Each influencer receives a percentage of the sale price when users buy products through their links. The profits earned by many influencers with hundreds of thousands of followers can be substantial.

Batra claims that PopSugar illegally took copyrighted pictures of many Instagram influencers, removing the referral links from which they profited, and posting the pictures on PopSugar’s website with new links. These new links deprived the media influencers of their profits by directing users to ShopStyle, a website then owned by PopSugar.

Batra is suing for violations of the Digital Millennium Copyright Act (17 U.S.C. § 1202) and the Lanham Act (15 U.S.C. § 1125(a)), copyright infringement, violations of the unfair competition law, infringement of the right of publicity, and intentional interference with contract. This feature allegedly cut into the profits of the media influencers and improperly used their names and likenesses without their permission. Instead of Batra and other class members receiving their commissions, PopSugar’s company at the time, ShopStyle, would receive the total profit from purchases made.

Brandi Passante appears on A&E Network’s Storage Wars reality show, as a result of which she has achieved notoriety and claims to be a worldwide celebrity and developed trademark rights in her name. Defendant Hunter Moore has been anointed the Internet’s most hated man for publishing unauthorized pornographic pictures of men and women, often submitted by jilted lovers, and linking the pictures to the individual’s Facebook page. Although he reportedly sold the website to an anti-bullying entity, he appears to be posting similar material to his tumblr account and new website.

After numerous unsolicited posts on her Twitter account stating that users wanted to see more of her pictures and video, Passante discovered that Moore had posted images of someone portraying her in a pornographic video to his tumblr account. Passante alleges that she never made any such video and Moore has fabricated the video for the purpose of trading on her fame and celebrity to draw traffic to his site. Moore is also accused of posting defamatory comments related to the video by falsely representing that Passante made the video for him. The complaint states that “Moore posted the video knowing that the images were not of Passante and did so maliciously, and with reckless disregard to Passante’s reputation, privacy, and well-being. He did so with the false and fraudulent intent to mislead the public into believing he was somehow affiliated with Passante.”

The Judge immediately issued a temporary restraining order preventing Moore’s posting, publishing, or linking to the Video, and ordering its immediate removal from Moore’s sites. The Judge also ordered Moore to appear on November 9th to argue why a preliminary injunction should not be entered preventing the dissemination of the video or why “all of Moore’s computers, servers and other electronic storage devices that contain copies of the Video should not be impounded by the United States Marshall’s offices.” The Judge relied on Passante’s likelihood of success on her trademark infringement and Lanham Act claims in issuing the TRO because Moore’s “use of Passante’s name and likeness in commerce in connection with a video and associated images thereof or therefrom (collectively “Video”), and his false and misleading claims that the Video originated with Passante were intended to deceive the public into believing that Passante was in some way affiliated with Moore, thereby driving web traffic to his illicit website.” Because there is no adequate remedy at law, injunctive relief is the “remedy of choice” in trademark cases. Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1180 (9th Cir. Cal. 1988).

Los Angeles, CA – The late Evel Knievel was a motorcycle daredevil whose crashes made him more famous than his successful jumps. Lawsuits continue regarding ownership of the copyrights in his pictures and film clips. In 2005, Gary Schreiber sued Knievel in Nevada District Court for a declaration of validity of a 1982 written transfer of copyrights to pictures and films made by Knievel (story about the suit is here). While the Nevada lawsuit is still pending, Schreiber has now filed a copyright infringement and right of publicity lawsuit against Madame Tussauds, the leisure/tourist attraction featuring wax sculptures and figurines of celebrities.

Plaintiff Schrieber alleges that Evel was in need of capital to resurrect his career and Schrieber purchased the rights to Evel’s films and the films themselves via written agreement in 1982. Plaintiff then produced two compilation films entitled “Evel Knievel’s Specacular Jumps” and “The Last of the Gladiators.” Schreiber alleges that at some time, Knievel once again sold or licensed the same rights – previously granted to Schreiber – to Madame Tussauds without Schrieber’s knowledge. The case is Raymond Gary Schreiber v. Tussauds Attractions Ltd., et al., CV11–2115 DSF (C.D. Cal. 2011).

Los Angeles, CA – Humphrey Bogart appeared in more than seventy motion pictures, including classics such as Casablanca, The Maltese Falcon, and The African Queen. Bogart, LLC, the plaintiff in the case, is the successor-in-interest of all intellectual property rights and assets associated with Humphrey Bogart, which rights were acquired from his children. Bogart owns a USPTO trademark registration for the trademark “BOGART” for use in connection with the sale of furniture. Bogart has previously licensed the trademark to Thomasville for a line of furniture products using the name and the trademark “Bogart.”

Defendants Plummers, Inc., Scandinavian Desings, Inc. and Dania , Inc. are allegedly affiliated companies that are accused of using the name and trademark “Bogart” without authorization in connection with a line of furniture. Plaintiff claims that Defendants advertising used the “Bogart” trademark along with copy referencing a “great retro design” and in a “deco style” to create a false association because it conjures up memories of the “style in the 1940’s and 50’s when Humphrey Bogart was the world’s most popular, acclaimed and sought-after motion picture actor.” Plaintiff asserts causes of action for misappropriation of right of publicity (Cal. Civ. Code §3344.1), trademark infringement, unfair competition under the Lanham Act, and trademark dilution. The case is Bogart, LLC v. Plummers, Inc. et al., CV10-4151 GAF (C.D. Cal. 2010).

Los Angeles, CA – Dr. Dre sued the new Death Row records for breach of contract, trademark infringement, false advertising, violation of the right of publicity, and unfair competition. Details blogged here, and read the complaint here. Dr. Dre alleged that he’s owed royalties on his music album “The Crhonic,” and others, and that defendants have released a “remastered” version of the album, “The Chronic Re-Lit & From the Vault”, as well as a “Greatest Hit” album without his permission.

The Court denied the motion as to the breach of contract and constructive trust causes of action. The Court, however, dismissed the Lanham Act causes of action because the Court noted that Dr. Dre did not plead that the alterations made to the work were substantial enough to trigger the “Monty Python” rule. Gilliam v. American Broadcasting Cos., Inc., 538 F.3d 14, 18 (2d Cir. 1976) (editing of “Monty Python” show for television broadcast constituted authorship or endorsement of a substantially modified version of the work to constitute trademark infringement). The Court continued:

As to plaintiff’s allegation that defendants have used his name and likeness, including the original photograph from the jacket cover of “The Chronic,” the Court finds that these allegations fail to state a claim that defendants have over-represented plaintiff’s contribution to “Re-Lit,” given that defendants accurately identify plaintiff as the author of the original masters and that defendant used a substantially same photograph from the original album jacket cover, and did not use a current picture so to imply that plaintiff recently contributed to the re-issued album.

LA, CA – Dr. Dre, whose real name is Andre Young, sued the new Death Row records for trademark infringement, breach of contract, violation of the right of publicity, and unfair competition. The complaint claims that nothing has changed at Death Row: “meet the new boss, same as the old boss” and alleges:

Whether you get thugged or the check just doesn’t come, it’s all the same — someone else has your money. And whether it’s a platitude-spouting, self-proclaimed soccer mom or a supposed gangster who isn’t paying you, it doesn’t change the fact that you’re not getting paid. Read the complaint here.

The rap star and record producer co-founded Death Row records in 1991 with Marion “Suge” Knight and began the gangsta rap movement. Few, however, remember Dr. Dre’s “less Gangsta” side when he was on the turntables for the World Class Wreckin Cru – but I digress. The parties verbally agreed that in exchange for payment of royalties to Dr. Dre, Death Row received a non-exclusive license to release sound recordings that he produced, composed and/or performed on. Dr. Dre’s first record release under the Death Row label was “The Chronic” in 1992, which was a huge success.

Las Vegas, NV – Shaquille O’Neal has had numerous nicknames throughout his NBA basketball career. But his SHAQTUS nickname, which he assumed when he was traded to the Phoenix Suns in 2008, has become the prickly subject of a trademark infringement, cybersquatting, and right of publicity lawsuit. O’Neal has exclusively licensed his “Shaq” trademarks and his name, image, and likeness to his Mine O’Mine, Inc. corporation – the Plaintiff in the case.

Michael Calmese, Dan Mortensen, and their True Fan Logo, Inc. are the named defendants. On the day that Shaquille was traded to Phoenix, Mortensen registered the domain name and, shortly thereafter, the domain name. Defendants’ website features a cactus character that allegedly has O’Neal’s facial features and wears an orange number 32 basketball jersey – Shaq’s number with the Suns. Defendants sell clothing and other products bearing the SHAQTUS trademark and/or the character.

In 2008 and 2009, ESPN aired commercials featuring O’Neal and a cactus with O’Neal’s facial features. On December 4, 2009, Defendant Calmese allegedly sent a letter to ESPN claiming ownership of the SHAQTUS trademark and proposing a joint-development business arrangement to resolve the dispute. On December 29, 2009, Plaintiff’s counsel sent a cease and desist letter to Defendants demanding the transfer of the domain names. On January 4, 2010, Defendant Calmese responded and allegedly claimed that O’Neal consented to his use of the SHAQTUS mark when O’Neal agreed to take a picture with Calmese and autograph a T-shirt.

Los Angeles, CA – Larry Flynt sued his former employees and nephews, Jimmy Flynt, Jr. and Dustin Flynt, for trademark infringement for using the family name in their upstart pornography company. Details blogged here. Larry Flynt also made a claim for violation of his rights of publicity under California Civil Code § 3344. On January 9, 2009, the Court preliminarily enjoined the nephews from using the “FLYNT” mark alone with the distribution of adult material, but allowed the nephews to use their first names in association with their family name on the same products. Details blogged here.

After a three day jury trial, Larry Flynt may have won the battle, but lost the war. LA Time article, here. The jury agreed that the use of the last name FLYNT alone was likely to confuse consumers as to the source of the adult related material and a permanent injunction will issue against the nephews. No monetary damages were sought for the trademark infringement claim. The jury, however, sided with the nephews on Larry’s rights of publicity claim, which contains a mandatory attorneys’ fees provision for the prevailing party. Thus, it looks like Larry will have to pay the nephews’ attorneys’ fees incurred in their defense of the §3344 claim, which they are likely to pursue since Larry allegedly fired their father in retaliation for the sons’ use of the family name. The case is Larry C. Flynt v. Flynt Media Corporation, et al., CV 09-00048 AHM, CV09-8796 JC (C.D. Cal. 2009).